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Chapter 16

Creating a new statutory power

Part 2

Who should hold the new power?

Legislation should identify who holds the new power. The power should be held by the person or body that holds the appropriate level of authority, expertise and accountability.

There are two aspects to this issue. The first aspect is which branch of government will hold the power? Powers are usually granted to the executive. In cases where a power of a judicial nature is involved, it should be granted to the judiciary (which includes tribunals). The second aspect is which level within that branch will exercise the power? A power may be vested in the executive, but a decision must still be made about whether the power is to be exercised by officials, the chief executive, Minister or another statutory office holder.

The following factors should be considered when deciding where to place the power:

The character of the issues involved and the nature of the power includes:

whether the power is appropriate for delegation;

the importance of the individual rights and interests involved;

the importance of the government interests involved;

whether the power contains a broad policy element;

whether the power should be exercised independently of government control or the control of the governance body of the organisation.

The characteristics of the person who holds the power includes:

the expertise required of the decision maker;

whether the new role will conflict with an existing role;

the level of accountability desired of the decision maker.

The process by which the power will be exercised includes:

the context in which the issues are to be resolved (such as by administrative decision);

the procedure commonly used by the decision maker;

whether the power involves the finding of facts and the application of precise rules to those facts;

whether the power requires the making of broad judgements or the exercise of wide discretion.

Practical matters include:

the ability of the decision maker to access relevant information;

the existence of safeguards (such as the Ombudsmen and the Official Information Act.

In general, decisions relating to more significant issues should be taken by a person with an appropriate level of seniority and accountability. For reasons of simplicity, it will usually be preferable to place a power with the person who has ultimate accountability for the decision (such as a chief executive or Minister). The person exercising the power must have sufficient expertise in the area in which they are exercising the power. If a tension arises between the need to place a power with a suitably senior or accountable person, one option is to require the decision maker to have regard to or act on the recommendation of a subject matter expert.